Last week, the Second Circuit reversed Judge Failla’s decision criticizing precedent that she concluded required dismissal of a Title VII claim focused on sexual orientation discrimination (see our coverage of Judge Failla’s ruling here).  The Second Circuit found that it lacked authority to overturn circuit precedent without an en banc panel or a subsequent U.S. Supreme Court decision, and so did not revisit its prior conclusion that Title VII does not authorize suits based on sexual orientation discrimination.  The panel did find, contrary to Judge Failla’s ruling, that the case could proceed as a plausible gender stereotyping claim:

However, we disagree with the district court’s conclusion that [the plaintiff] failed to plausibly allege a Title VII claim based on the gender stereotyping theory of sex discrimination articulated in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which is also binding on this panel. In Price Waterhouse, the female plaintiff, a senior manager at an accounting firm, was described as “macho” and “masculine” and informed that “to improve her chances for partnership, . . . [she] should walk more femininely, talk more femininely, dress more femininely, wear make‐up, have her hair styled, and wear jewelry.” After her office declined to nominate her for partnership, she sued under Title VII alleging sex discrimination. Six members of the Supreme Court held that adverse employment action rooted in “sex stereotyping” or “gender stereotyping” was actionable sex discrimination.  Here, [the] complaint identifies multiple instances of gender stereotyping discrimination.

The case has been remanded to Judge Failla.